The Legal Landscape for Cannabis Social Clubs in Spain - DE DROGAS - Amber Marks
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TORIO
OBSERVA L
CIVI
AS
DE DROG
The Legal Landscape
for Cannabis Social Clubs in Spain
Amber MarksThe Legal Landscape
for Cannabis Social Clubs in Spain
2!
A Preliminary Sketch of the Legal Landscape
for Cannabis Social Clubs in Spain (2015)1
Amber Marks 2
This briefing is a preliminary sketch of the legal landscape for cannabis social clubs in Spain. Its author is
presently conducting legal analysis and empirical research in Spain and her findings will be published in due
course. The aim of this briefing is to provide an interim sketch of the relevant law for English speakers working
in drug policy.
If you have any comments or questions or if you require a more in-depth discussion or more complete
references, please contact Amber Marks at Queen Mary, University of London (a.marks@qmul.ac.uk) for a
draft of the article A. Marks, M. Torres and O.Casals ‘The Fine Green Line: The Regulation of Cannabis Clubs
and Cultivation in Spain’.
1. Any references to this briefing should be cited as A.Marks ‘The Legal and Socio-Political Landscape for Cannabis Social
Clubs in Spain (Observatorio Civil De Drogas, 2015).
2. Lecturer in Law, Queen Mary, University of London.
3! The Legal Landscape
for Cannabis Social Clubs in Spain
Introduction and Overview
The so-called ‘Spanish Cannabis Social Club now at least 500 cannabis associations operating
model’ has generated a great deal of interest in in Spain, each with hundreds if not thousands of
drug policy circles. The model consists of a not- members. The majority is in Catalonia, followed
for profit association, democratically operated by the Basque country, but they are in existence
by its members, officially registered as a legal throughout the country (including in the
entity, which collects and distributes cannabis to autonomous communities of Madrid, Valencia,
its members, on private premises licensed for the the Canaries, Andalusia, the Balearics, Navarra,
sole access of members. Several associations Castile and León, and Galicia)4. In Catalonia the
cultivate cannabis on behalf of their members. In number of applications for licenses by cannabis
order to be a member of a cannabis association associations has resulted in the administrative
a person must be an adult, a habitual user of creation of a specific license for cannabis smoking
cannabis, and the friend of a signed-up member. clubs. A de facto legalisation of cannabis supply
Members put money into the association and has arisen, not as a result of any legislative
are thereby entitled, in addition to use of its initiative, but from the persistent testing of
facilities, to a proportionate share of its products, Spain’s legal boundaries by civil society. Whilst
including cannabis. The legal protection afforded criminal proceedings have been and continue
to registered associations by the Constitution to be brought against cannabis associations for
and national legislation means that they can only both the distribution and cultivation of cannabis,
be dissolved by a court order. The licensing of the overwhelming majority results in acquittals or
private premises for the use of the association in a stay of proceedings occasioned by judicial
(social clubs) entails the adequate satisfaction of findings that the conduct proven is not in breach
various municipal regulations and autonomous of the criminal law of Spain. Such rulings are not
community laws concerned with matters such as infrequently accompanied by judicial statements
health and safety, and the abatement of noise and about the inequity of the prosecutions and the
noxious emissions. urgent need for government regulation to ensure
law enforcement and prosecutions target only
The first cannabis association was formed in 1991 criminal supply, and not cannabis clubs.
and the first club appears to have been opened
in 2001. There was a dramatic proliferation of Faced with the social reality of what are now
cannabis associations and clubs between 2007 several hundred cannabis associations and
and 20113. Official records suggest that there are cannabis social clubs, two city councils (the
province of Girona and the municipality of
3. Òscar Parés Franquero and José Carlos Bouso Saiz,
Pioneering Drug Policy in Catalonia: Innovation Born of
Necessity (forthcoming in 2015, OSF). See also Xabier Arana 4. La sesión de la comisión mixta para el estudio del problema
and Virginia Montañés Sanchez ‘Cannabis Cultivation in Spain de las drogas (Session of the Joint Committee on the drug
– The Case of Cannabis Social Clubs’ in T.Decorte, G.R.Potter problem) 28th October 2014. http://www.congreso.es/public_
and M.Bouchard World Wide Wee: Global Trends in Cannabis oficiales/L10/CORT/DS/CM/DSCG-10-CM-126.PDF
Cultivation and its Control (Ashgate, 2011).
4! The Legal Landscape
for Cannabis Social Clubs in Spain
San Sebastian) and the parliament of one The Cannabis Social Club model has attracted
autonomous community (Navarra) have all international attention in drug policy circles for
introduced specific criteria for the local regulation several reasons of which the primary appear to
and licensing of cannabis clubs. The Parliament be:
of the autonomous communities of the Basque
country has announced its intention to do (i) The proliferation of cannabis social clubs
likewise, as has the town council of Barcelona. in Spain has not attracted criticism from either
The Parliament of Catalonia has issued detailed of the primary drug control bodies, the INCB or
recommendations for their regulation by local UNODC;
councils. The aforementioned councils and (ii) The model appears to conform with
parliaments describe the cannabis social club international obligations;
as an opportunity for enhancing civil rights and (iii) The democratic means by which
promoting public health simultaneously. The associations must operate to conform to the
aim of these regulations is harm-reduction administrative law on associations, offers
and provision of legal security for cannabis consumer control over the product;
associations. The central government opposes (iv) On account of the associations being
local regulation and claims that any regulation not-for profit, the model safeguards against the
relating to prohibited substances is within the perceived risk of over-commercialisation;
exclusive jurisdiction of the central government (v) The model offers a regulatory opportunity
in accordance with its obligations under the for quality-control of the cannabis distributed and
International conventions. for programmes of risk-prevention;
(vi) The model provides a means of separating
District council licenses, coupled with the cannabis supply from the black market and harder
promulgation of local regulations have enhanced drugs;
the social standing and perceived legitimacy of (vii) The model facilitates research into
cannabis social clubs. Cannabis social clubs and cannabis consumption and therefore the design
cannabis associations adhere to increasingly of appropriately targeted programmes of harm
elaborate self-regulation. Such regulations are reduction.
far from identical. Both their uniformity and their
diversity are a reflection of attempts to exert social
pressure on the authorities whilst conforming to
exigencies of planning regulations, a vast body
of criminal case-law on ‘closed-circle use’ (see
below) and in anticipation of the requirements of
municipal regulations for cannabis clubs.
5! The Legal Landscape
for Cannabis Social Clubs in Spain
Domestic Law
Spain ratified the Single Convention on Narcotic in the Spanish Civil Code and the courts are not
Drugs UN Convention of 1961 in 1966. The permitted to create law, only to interpret and
international lists of controlled substances, apply it. The interpretation of the law is governed
including cannabis, were incorporated into by Article 3 of the Civil Code. Article 3 makes clear
Spanish law by the Narcotic Law 17/1967 (Ley that the both the objective and the spirit of the
de Estupefacientes). The Narcotic Law 17/1967 law are key to its interpretation. It also specifies
provides the Spanish state (the law pre-dates the that the law must be interpreted according to the
1978 constitution) with the right to take action in social reality at the time of its application. There
relation to drugs. Narcotic Law 17/1967 provides is presently some ambiguity about the weight and
that all substances listed in its schedule IV of the existence of any rules of precedent in relation to
Single Convention cannot be produced, trafficked, the decisions of the Supreme Court in criminal
possessed or used except in the quantities matters.
necessary for medical and scientific research
and with the authorization of the Department of (1) Possession and Social Supply (Closed-Circle
Health. It stipulates that no person or legal entity Use)
can dedicate themselves to cultivation of such Article 368 of the Criminal Code makes it a
cannabis and production without the relevant criminal offence to cultivate, produce, traffic or
authorisation. The Narcotic Law 17/1967 did otherwise promote, encourage or facilitate the
not create any criminal offences, and does not illegal consumption of toxic drugs, narcotics or
provide any criminal penalties in relation to any psychotropic substances, or to possess these
breach of its provisions. The primary purpose of substances with such objectives. Article 368 is
the Narcotic Law 17/1967 was to incorporate the skeletally defined and provides ample scope for
provisions of the Single Convention 1961 and its the courts to flesh out the offence in its application
principal function is to clarify which substances and interpretation.
the criminal and administrative offences on
drugs in Spanish law relate to. The principal The possession of drugs with any objective other
administrative and criminal offences relating to than the promotion, encouragement or facilitation
drugs are contained, respectively, in Article 25 of their illegal consumption is not a criminal
and 26 of Ley Orgánica 1/1992 Protección de la offence. The possession of drugs for personal use
Seguridad Ciudadana and in Article 368 of the is an example of possession for an objective other
Criminal Code. than the promotion, encouragement or facilitation
of illegal consumption, and it is therefore not a
Note on the Judicial System and Precedence: The criminal offence. This was the Supreme Court’s
Spanish legal system is a civil system as opposed interpretation of the scope of the offence in 1974
to a common law system of precedent. Caselaw and was confirmed in Parliament’s subsequent
is not listed amongst the sources of law identified revision of the Criminal Code. The personal
6! The Legal Landscape
for Cannabis Social Clubs in Spain
consumption of drugs is outside the elements For ease of reference both personal use and ‘social
of the offence defined in Article 368; the drug supply’ will be referred to as ‘closed-circle use’ in
must be certified as destined for a use other than this document. Possession of cannabis in private
the personal use for it to amount to a criminal for ‘closed-circle use’ is neither an administrative
offence5. nor a criminal offence.
The concept of personal use in Spanish caselaw One explanation for the exclusion of ‘closed-circle
is broader than in English criminal law and is use’ from the scope of the criminal law is that
more akin to the concept of ‘social supply’ used in the purpose of the criminal law on drugs in Spain
the sentencing practice of the courts of England is the protection of public health as a collective
and Wales. In England and Wales the supply good. Whilst the individual may benefit indirectly
of drugs to a social group who has contributed from this protection, individual health is not the
to the purchase price of the drug will amount target of Article 368; the offence concerns itself
to the offence of supply for the purposes of solely with behavior that endangers public health.
the substantive criminal law, but in sentencing Numerous judgments of the Supreme Court
practice it may be dealt with as if it were an include pronouncements on the requirement for
offence of simple possession6. In Spain, the there to be some risk of drug diffusion amongst
Supreme Court’s interpretation of the substantive ‘third parties’, or encouragement of its use by ‘third
criminal law is to treat social supply and personal parties’ for the elements of the criminal offence to
possession as the same; both are beyond the be established7. The boundaries of ‘closed circle
scope of criminal law. use’ and the definition of ‘third parties’ are difficult
to define however. Several valiant attempts have
been made to do this by academics and activists
5. “El consumo de drogas o esupefacientes es atípico, para que through analysis of a large and ever expanding
la mera tenencia se repute delectiva, es menester que quede body of case-law from the Supreme Court on
acreditado que la poseída no se hallaba destinada al propio
consumo (the personal consumption of drugs is not criminal ‘closed-circle use’. Several decisions in the appeal
and the possession of drugs will only therefore be criminal courts of the autonomous communities also
when it is destined for use other than personal consumption” :
STS 20th March 1980. provide digests of the exigencies of ‘closed circle
use’. Much of the self-regulation of cannabis clubs
6. In Holmes v Chief Constable Merseyside Police [1976] Crim has been inspired by these analyses and digests,
L.R. 125, the Divisional Court rejected a defence submission that
a person who held drugs on behalf of themselves and others
was in joint possession and that a person who held drugs on
behalf of themselves and others was in joint possession and
that a subsequent division of the drugs could not amount to 7. For further discussion of this distinction and citation of case-
supply. Where there is no commercial element to the supply, law of the Supreme Court in support see José Luis Diez Ripolles
and the defendant supplies or possesses drugs intending to and Juan Muñoz Sánchez, ‘Licitud de la autoorganización
supply to them to a small social group had contributed to the del consumo de drogas (Lawfulness of organized drug
purchase price of the drug, the case might be dealt with for consumption’ Jueces Para La Democracia (Judges for
sentencing purposes as akin to simple possession: Denslow Democracy)(75) November 2012. For a comprehensive
[1998] W.L.R. 1044/745, Parish [1999] EWCA Crim.2686 and analysis of the case-law see Jacobo Dopico Gómez-Aller
Busby [1999] EWCA Crim.1824 as cited in R.Fortson Misuse of Transmisiones atípicas de drogas: Crítica a la jurisprudencia
Drugs and Drug Trafficking Offences (Sweet and Maxwell, 6th de la exceptionalidad (Lawful drug transactions: analysis of
ed. 2011) p.922 the jurisprudence) (Tirant lo blanch, 2012)
7! The Legal Landscape
for Cannabis Social Clubs in Spain
and in particular that written by Muñoz and Soto the lower courts and questioned the legitimacy of
at the request of the government of Andalusia8. In the prosecutor’s stance given the large number
précis, the supply of cannabis (i) to persons who of cases to the contrary. The MP cited a recent
are habitual users of cannabis (ii) in premises judgment absolving a cannabis association from
that are closed to the public (iii) in amounts that the Audiencia Provincial de Vizcaya, in which
are consistent with the person’s personal use and the court clearly states that number of persons
not redistribution of the cannabis amongst third supplied is of no relevance to the applicability of
parties (iv) for its immediate consumption within ‘closed-circle use’. In response the prosecutor
the locality, will - according to doctrine of ‘closed- stated he was not bound by the decisions of the
circle use’ - be outside the scope of the criminal lower courts, but by that of the Supreme Court.
offence. Any active recruitment of members The Supreme Court has not pronounced on the
through promotional activities, or any supply of specific application of the closed-circle doctrine
cannabis to persons who are not already habitual to cannabis associations; the penalty for cannabis
users, would be criminal. supply and cultivation was reduced in 1995 and
as a result the final court of appeal for such cases
In conclusion, the substantive criminal law of is the Audiencia Provincial. The cannabis social
Spain – as applied by the courts - has succeeded club model appears to conform with the Supreme
in netting the ‘drug pusher’ whilst excluding drug Court’s doctrine on ‘closed circle use’ and unless
users and those satisfying the demand of users and until the prosecution find a legitimate means
within their social circle. of getting a case involving a cannabis social club
before the Supreme Court, the model is likely to
In October 2014 José Ramón Noreña, the Anti- continue to be treated by the lower courts as
Drugs Prosecutor, announced an offensive beyond the reach of the criminal law.
against the cannabis clubs. In his evidence to
the Cortes Generales (the bicameral parliament) Possession of drugs (including cannabis) in
he argued that the ‘closed-circle’ doctrine is of no public is an administrative infraction, regardless
application whatsoever to cannabis associations, of the objective for which it is possessed, and
primarily on account of the number of people attracts financial penalties. The tolerance of
generally inscribed in such associations. Cazalis its consumption in public premises by their
Eiguren, an MP from the Basque party (Grupo management is also an administrative infraction.
Parlamento Vasco, PNV) pointed out that his Cannabis Social Clubs are private premises to
opinion directly contradicts the jurisprudence of which only members are lawfully admitted.
8. Juan Muñoz Sánchez and Susan Soto Navarro, Uso
terapéutico del cannabis y creación de establecimientos para
su adquisición y consumo: viabilidad legal (Therapeutic use of
cannabis and the creation of establishments for its acquisition
and consumption: legal viability) Boletín Criminológico No 47
(May-June 200) pp 1-4
8! The Legal Landscape
for Cannabis Social Clubs in Spain
(ii) Cannabis Cultivation the cannabis crop is destined for third parties
Cannabis cultivation will amount to a criminal ie persons outside the ‘closed circle.’10 The vast
offence when deemed to be in breach of Article majority of prosecutions of associations for the
368. Whether the cultivation of cannabis for cultivation of cannabis for their members have
‘closed-circle use’ is criminal is a matter of some resulted in acquittals on the basis that cultivation
debate. The first Supreme Court decisions on this for ‘closed-circle use’ is not a criminal offence.
issue (in 1990 and 1994) employ reasoning that
is consistent with their decisions on possession The new draft Ley de Seguridad Ciudana will
for ‘closed-circle use’; cultivation that is destined make the cultivation of cannabis in public sight
for ‘closed-circle use’ does not satisfy the an administrative infraction. The draft law is a
requirements of the criminal offence because clear acknowledgement of the present lack of
it would not promote, encourage or facilitate certainty surrounding whether cultivation, even
the illegal use of drugs and does not violate the in full public view, is unlawful. Assuming that
interest protected by the criminal offence (bien the draft Ley de Seguridad Ciudana is approved,
juridico), which is public health. The most recent any cultivation in public view will amount to an
Supreme Court decision on this issue, however, administrative infraction.
was pronounced in 1997 and stated that any
cultivation of cannabis posed an inherent danger
to the interest protected by the law. The judgment
is controversial and described as ‘peculiarv’ in
Herrrero Alvaerz’s legal text on cannabis and the Compliance with International Law and
criminal law9. In the legal opinion of Herrero, European Law
cultivation destined for ‘closed-circle use’ does
not breach the criminal law. On account of the There is general consensus that there is no
lowering of the penalties in relation to cannabis obligation under the international conventions on
mentioned above, the 1997 decision was the drug control for drug possession to be a criminal
last such case to reach the Supreme Court. In offence where it is for personal consumption.
2003 the then Prosecutor of the Supreme Court, There is also ample scope for arguing that
Fernando Sequerros Sazatornil issued an opinion the same latitude applies to cultivation for
on the state of the law in relation to cannabis, personal consumption11. The drafters of the
and stated that cultivation for personal use is not Single Convention 1961 appear to have had
a criminal offence in Spanish law. Trial judges only commercial cultivation in their sights. The
continue to require the prosecution to prove that
10. See for example the decision 250/09 of the Audiencia
Provincial of Gipuzkoa on the 6th July 2009
9. Herrero Alvarez, S.‘El cannabis y sus derivados en el derecho
penal español (Cannabis and its derviatives in Spanish criminal
law’ Adicciones, 12(2), 315-329 at 322 available at http://www. 11. N.Boister Penal Aspects of the UN Drug Conventions
adicciones.es/files/herrero%20315-329.pdf Kluwer Law International (2001)
9! The Legal Landscape
for Cannabis Social Clubs in Spain
first and only reference in the UN Treaties to the criminal law. The conclusion to the extensive
‘cultivation for personal use’ is in Article 3 of the legal analysis conducted by TNI on the scope
1988 Convention which provides that: of treaty latitude is that legal regulation of the
“Subject to its constitutional principles and the cannabis market for recreational purposes cannot
basic concepts of its legal system, each party be justified within the existing limits of latitude of
shall adopt such measures as may be seen the UN drug control treaty12.
necessary to establish as a criminal offence under
its domestic law, when committed intentionally,
the possession, purchase or cultivation of
narcotic drugs or psychotropic substances for Social impact And Effectiveness
personal consumption contrary to the provisions
of the 1961 Convention, the 1961 Convention as Whereas the potential of the Spanish cannabis
amended or the 1971 Convention.” club model to reduce harm is widely acknowledged,
The author is exploring the concept of “personal there are as yet no completed empirical studies
use” in a range of jurisdictions and for the on their operation in practice or analyses on
purpose of this briefing it will suffice to note the social impact of their proliferation. Official
that at a European level, the Council Framework figures suggest that during the period of their
Decision 2004/757/JHA on illicit drug trafficking proliferation there has been an increase in the
specifically excludes the following from its amount of cannabis cultivated, a decrease in the
definition of criminal traffic in drugs: amount of cannabis imported13 and a decrease in
“(i) simple users who illegally produce, acquire the amount of cannabis consumed14. The author’s
and/or possess narcotics for personal use and preliminary research suggests that continued
(ii) users who sell narcotics without the intention targeting of cannabis crops by law enforcement
of making a profit (for example, someone who may have the effect of encouraging the indoor (as
passes on narcotics to their friends without opposed to outdoor) cultivation of cannabis.
making a profit). The principal target of the
Framework Decision is “transnational trafficking
and actions undertaken for the purpose of
transferring ownership for profit.”
The above suggests that the case-law in Spain
12. M. Jelsma, T.Blickman and D.Bewley-Taylor, The Rise and
that interprets possession and cultivation for
Decline of Cannabis Prohibition: The History of Cannabis in the
personal use (and by extension, ‘closed circle UN Drug Control System and Options for Reform (TNI, 2014)
available at http://www.tni.org/rise-and-decline
use’) as outside the scope of the criminal law is in
compliance with the Convention.
13. Luis Gómez, ‘España quintuplica desde 2009 su producción
What is ambiguous is under what circumstances, industrial de marihuana’ El País 17 September 2014
if any, a country could ‘permit’ possession.
Permission suggests a form of legal authorization, 14. Òscar Parés Franquero and José Carlos Bouso Saiz,
as opposed to the exclusion of a behavior from Pioneering Drug Policy in Catalonia: Innovation Born of
Necessity (forthcoming in 2015, OSF)
10! The Legal Landscape
for Cannabis Social Clubs in Spain
Published February 2015
Author Amber Marks
Additional input Oriol Casals
Miguel Torres
Layout Pierre Genet
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